CORAM

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CHIMA CENTUS NWEZE

UWANU MUSA ABBA AJI

MOHAMMED LAWAL GARBA

HELEN MORONKEJI OGUNWUMIJU

MUSA DATTIJO MOHAMMED

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PARTIES

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SOUTH ATLANTIC PETROLEUM LIMITED

APPELLANTS 

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1. THE MINISTER OF PETROLEUM RESOURCES AND

2. EMO EXPLORATION AND PRODUCTION LIMITED

3. ONGC/MITTAL ENERGY LIMITED (Joined By Order Of The Supreme Court Made On 4th July, 2017)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, JUDGEMENT, OIL AND GAS, MINING

 

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SUMMARY OF FACTS

The Federal Government of Nigeria awarded an Oil Prospecting Licence (OPL), covering an area of 1000 square miles, known as “OPL 246”, for a statutory five-year tenure, to the appellant, herein. It was further extended for five years and due to expire on March 28th, 2008. This award entitled the appellant to an exclusive right to the exploration and prospecting of commercial quantities of crude oil found in the designated area and to convert same into an Oil Mining Lease (OML). Upon the grant of an Oil Mining Lease (OML) however, the holder is taken to have mandatorily relinquished the unconverted part or residue of the OPL to the Federal Government.

The appellant, by a letter dated March 8th, 2004, applied for the conversion of the eastern portion (50% of the total) of the said OPL 246 to an OML which was approved.  Again, the appellant applied for an “additional” OML deriving from the remainder of the OPL 246 but this application was not approved by the Government. The appellant was requested to commence relinquishment process of the unconverted portion to the Government.

The DPR then sought to auction the unconverted portion for OPL 246 for sale to third parties, among which included the second and third respondents.

The appellant filed an ex-parte application for leave to apply for judicial review before the Federal High Court, Lagos Judicial Division, on May 4th, 2006. This application was granted.

The appellant commenced action by way of Originating Motion filed on May 10th, 2006. It sought various reliefs to the effect that its rights and interests in OPL 246 remain extant until March 2008, notwithstanding the grant of OML 130 out of OPL 246. It further claimed that the said letters asserting the mandatory relinquishment or forfeiture of the unconverted portion of OPL 246, were unlawful, null and void.

The first respondent filed a notice of preliminary objection on May 15th, 2006, challenging the competence of the suit on the  ground that the suit ought to have been commenced within three months of the accrual of the cause of action as required by Order 47 Rule 4 (2) of the Federal High Court Rules.

The trial Court, by its judgment delivered on October 4th, 2006, upheld the first respondent’s objection. It concluded that the letters and the communication therein were not unlawful. Consequently, the appellant’s originating motion was dismissed.

Aggrieved by the decision of the trial Court, the appellant lodged an appeal at the Court of Appeal. There was a stroke of bad luck. While the appeal was awaiting judgment, OPL 246, expired on March 28th, 2008, by effluxion of time. The lower Court delivered its judgment on April 19th, 2008.

In the said judgment, the lower Court raised an issue suo motu, namely, that the appellant’s appeal being devoid of live issues had become academic. Without affording the parties the opportunity to address on the said issue, the Court reasoned that the bedrock of the appeal has been destroyed because the tenure allocated to the appellant for the OPL 246, had expired by effluxion of time.

This, palpably, wrong procedure of the lower Court formed the basis of the appeal lodged by the appellant before this Court.

In a judgment delivered on January 12th, 2018, this Court held that the appellant had been deprived of its right to fair hearing. This, according to this Court, was because the lower Court raised an issue suo motu and failed to invite the parties to address it on the issue so raised. Accordingly, this Court allowed the appeal. It, consequently, ordered that the matter be sent back to the lower Court for rehearing.

The court of appeal heard the matter again and allowed the application in part. Aggrieved by their ruling, the appellant is now before this Court.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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1. Whether the Court below was right when it refused the appellant’s application to amend her existing Notice of Appeal and appellant’s brief of argument

2. Whether on the facts and circumstances of this case, the term of OPL 246 had expired by effluxion of time by March 28th, 2008, and if so, whether the assumed expiration of the term of OPL 246 had the effect of rendering the appeal devoid of live issues and therefore academic?

 

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RATIONES DECIDENDI

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APPEAL – GENERAL JURISDICTION

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…Section 22 of the Supreme Court Act; and Order 8 Rule 12 (2) of the Supreme Court Rules. Pursuant to these provisions, in any matter on appeal before it, this Court, generally, shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part, Katto v. C.B.N (1999) LPELR-1677 (SC); Sodipo v. Lemminkainen OY (1985) 7 SC 492; Odi and Anor v. Osafile and Anor (1985) LPELR-2212(SC); Shonekan v. Smith (1964) All NLR 168 173; Awoyale v. Ogunbiyi (1985) LPELR- 661 (SC). – Per C. C. Nweze, JSC.

 

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JUDGMENT – CONDUCT OF THE COURT

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In all, it has long been settled that, where in the course of writing its judgment, a Court discovers an important issue that was not addressed by the parties, at the time of hearing, it is duty bound to re-open the proceedings and invite the parties to address it on the discovered issue before it decides the issue, provided the statutory time limit for delivery of its judgment, had not lapsed, Cole v. Martins [1968] 1 All NLR 161; Ifezue v. Mbadugha and Anor [1984] 5 SC 79; Nigerian Tobacco Co. Ltd v. Agunanne [1995] LPELR-2034 (SC).

​Others include Leaders of Company Ltd and Anor v. Bamaiyi (2010) LPELR-1771 (SC); Taylor v. Trustees of the Trinity Methodist Church [1986] 4 NWLR (pt. 34) 136; Utuedor Utih and Ors v. Jacob Onoyivwe and Ors [1990] 1 SCNJ 25, (1991) LPELR-3436 (SC); Attorney-General, Oyo State and Anor v. Fairlakes Hotel Ltd (1988) LPELR-24926 (SC); Ijebu-Ode L.G. v. Balogun and Co Ltd [1991] LPELR-1463 (SC). – Per C. C. Nweze, JSC.

 

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FAIR HEARING – WHEN ISSUES ARE RAISED SUO MOTU

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Indeed, the principle of fair hearing requires that, on no account should a Court of law raise an issue, suo motu, [provided it is not a sham issue], which is not in the contemplation of both parties or their counsel, no matter how clear it may appear to be, and proceed to resolve it without affording the parties or their counsel the opportunity of addressing the Court on the issue so raised, Adegoke v. Adibi [1992] 5 NWLR (pt. 242) 410; (1992) 6 SCNJ 136; Sodipo v. Lemminkainen OY (supra); Katto v. C.B.N. (supra).

Per C. C. Nweze, JSC.

 

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MOOTNESS DOCTRINE – TYPES OF MOOTNESS – PROCEDURE TO BE FOLLOWED WHEN A CASE IS MOOT

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Although with “deep roots in the common law …” Honig v Doe 484 US 305, 339, the mootness doctrine was popularized by the United States Courts. The case of Mills v Green 159 US 651 (1895) was, actually, the first US Supreme Court opinion that discoursed the said doctrine, Honig v Doe, 484 US 305, 331. The Court applied the mootness doctrine articulated in Mills v Green (supra) on various occasions throughout the early- to mid- Twentieth century. The Court, however, did not openly advocate that Federal Courts lacked the constitutional authority to decide moot cases, United States v W. T. Grant Co., 345 US 629, 632 – 33, 635 (1959). Indeed, it was only in the 1964 case of Liner v Jacobs, Inc 375 US 301 (1964) that the Court clearly recognized the mootness constitutional dimension, Lucero v Bureau of Collection Rocery Inc., 639 F3d 1239, 1242 (10th Cir 2011); Tpk Auth v Jersey Cent. Power and light 772 F. 2d, 25, 31 n. 11 (3d 1985). The said doctrine of mootness has featured in a host of decisions on various issues since the decision in Liner v Jacobs, Inc in 1964, North Carolina v Covington, 138 S. Ct. 2548, 2552- 53, (2018); Keirnan v Cuero, 138 S. Ct 47 (2017); FTC v Phoebe Putney Sys. Inc 568 US 216, 224 N. 3 (2013); Lozman v City of Riviera Beach, Fla. 568 U. S. 115, 120 (2013); Lopez v Gonzales, 544 US 47, 52 n. 2 (2006); Tory v Cochram 544 US 734, 736 – 37 (2005); Washington v. Harper, 494 US 210, 218 -19 (1990) etc.

The result is a rich harvest of case law governing where a case should (or should not) be dismissed as moot, as well as what procedures a Federal Court should follow after a case becomes moot. In all, contemporary jurisprudence has established that a case is moot when the issues presented are no longer alive or the parties lack a cognizable interest in the outcome. Thus, an actual controversy must exist not only at the time the suit was instituted but throughout all stages of the laws it., Kingdomware Techs, Inc v United States, 136 S. Ct 1969, 1775 (2006); Decker v Nw. Envtl. Def. Ctr. 568 US 597, 609 (2013); Lewis v Cont’l Bank Corp 494 US 472, 477 – 78 (1990); Honig v Doe, 484 U. S. 305, 317 (1988); Burke v Barnes, 479 US 361, 363 (1987). Interestingly, although, as shown above, the mootness doctrine owes its popularity to American jurisprudence, the said doctrine has been applied in Nigeria, Nigerian Courts, in applying it, have, however, not distinguished between the two types of mootness as done by American Courts, namely, Article 111 of the US Constitution mootness and prudential mootness, Ali v Cangemi, 419 F 3d 722, 723 (8th Cir. 2005). There is, however, the contrary view of Evan Tsen Lee, “Deconstitutionalizing Justiciability: The Example of Mootness,” 105 Harv. L. Rev 605 (1992). As indicated above, Nigerian Courts have adopted the doctrine as a fundamental feature of our judicial system. Thus, our Courts have taken the view they should not preoccupy themselves with academic issues with no practical utilitarian value. On the contrary, they only deal with live issues that will confer a right or benefit on the successful party, Plateau State v. Attorney-General of the Federation (supra); C.P.C. v. I. N. E. C and Ors (2011) LPELR – 8257 (SC); Odedo v. I. N. E. C (2008) LPELR- 2204 (SC); Okorocha v. Ohakim (2014) LPELR – 22005 (SC); Ohakim v. P. D. P (2014) LPELR – 22058 (SC); K.R.K. Holdings Nig. Ltd v. First Bank of Nig. Ltd and Anor (2016) LPELR-41463 (SC); Abraham v. Akeredolu and Ors (2018) LPELR- 44055 (SC). Court are extremely busy institutions, which are, according to the ethos of judicial case management, supposed to deal with concrete matters in dispute and on their merits. Where the cause of action is, for one reason, or another no longer alive, or has been dissipated, such case has been rendered moot and, therefore, amounts to an academic or cosmetic exercise, if embarked upon, Plateau State v. Attorney-General of the Federation (supra); C.P.C. v. I. N. E. C and Ors (supra); Odedo v. I. N, E. C (supra); Okorocha v. Ohakim (supra); Ohakim v. P. D. P (supra); K.R.K. Holdings Nig. Ltd v. First Bank of Nig. Ltd and Anor (supra); Abraham v. Akeredolu and Ors (supra).

It would be irresponsible of any Court of law to use the scarce commodities of judicial time and resources to pronounce on what are, clearly, abstract questions of law in respect of which whatever dispute had been there does not meaningfully exist to require the Court’s judicial machinery to be engaged on. Courts, generally, decline jurisdiction over such cases or dismiss them, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the Bench, the Bar and the public, Plateau State v. Attorney-General of the Federation (supra); C.P.C. v. I.N.E.C and Ors (supra); Odedo v. I. N. E. C (supra); Okorocha v. Ohakim (supra); Ohakim v. P. D. P (supra); K.R.K. Holdings Nig. Ltd v. First Bank of Nig, Ltd and Anor (supra); Abraham v. Akeredolu and Ors (supra). There are two natural instances in which a case may be said to have raised an academic issue. The first category of questions arises from cases whereby the situation upon which the Court is called upon to give an opinion is an entirely fictitious or hypothetical one, in the sense that, it, at no time, existed in actuality. The second category of cases are those cases where facts raising an issue entirely proper for decision existed when the suit was commenced but where it appears, during the pendency of an appeal, that by the cessation or discontinuance of the situation upon which the suit was founded, the case, once real, has become moot. In Attorney-General, Federation v. A.N.P.P and Ors (2003) LPELR-630 (SC), this Court held that: “There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So that in case of an appeal, the appeal may become academic at the time it is due for hearing even though originally there was a living issue between the parties. And I think the fact that the decision may help any of the parties to re-direct its affairs in an entirely different or probably anticipated situation is irrelevant. The pronouncement of Viscount Simon LC in Sun Life Assurance Company of Canada v. Jervis (1949) AC 110, 113 -114, covers, in my view, this very principle I have stated and it deserves to be quoted inter alia: The House should decline to hear this appeal on the ground that there is no issue before us to be decided between the parties… I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties … No doubt, the appellants are concerned to obtain, if they can, a favourable decision from this House because they fear that other cases may arise under similar documents in which others who have taken out policies of endowment assurance with them will rely on the decision of the Court of Appeal, but if the appellants desire to have the view of the House of Lords on the issue on which the Court of Appeal has pronounced, the proper and more convenient course is to await a further claim and to bring that claim, if necessary, up to the House of Lords with a party on the record whose interest it is to resist the appeal. The research which has been given to the matter does not discover any previous decision in which the House of Lords had undertaken, on the petition of an unsuccessful appellant, to review the decision below when the opposite party has been finally settled with, and I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue. As I have said, and as can be seen from the observation quoted above, the reliefs sought in this case having ceased to be of any relevance to support a living issue between the parties, this appeal is of mere academic interest. In the end, I entirely agree with the constitutional role of the Attorney-General spelt out by the learned Senior Advocate. He, as the Chief Law Officer, should be interested in any question relating to the validity and/or the correct interpretation of the laws of the Federation including the Constitution. But in a situation such as this, the interpretation of the constitutional provision, apart from being interpretation qua construction will, as I have said, serve no useful purpose.” Equally, in Dahiru and Anor v. APC and Ors, (2016) LPELR-42089(SC); [2017] 4 NWLR (pt. 1555) 218, 25, this Court explained that: “A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature … Once a suit no longer has live issue for determination such a suit can be said to be academic. Courts should on no account in such an instance spend judicial time… in academic exercise. Courts are to determine only live issues.” – Per C. C. Nweze, JSC.

 

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MOOTNESS DOCTRINE – CONDUCT OF COURTS

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It follows then that when an appeal is pending from the judgment of a lower Court, and without any fault of the respondent, an event occurs which renders it impossible for the appellate Court, if it should decide the case in favour of the appellant, to grant him any effectual relief whatsoever, the Court will not proceed to a formal judgment, but should dismiss the appeal. Such a case ought to be treated as though it was fictitious ab initio. In the words of this Court in Ndulue v. Ibezim and Anor (2002) LPELR-1980 (SC): “Where a question before the Court is entirely academic or speculative, the appellate Court in accordance with the well settled principle of this Court will decline to decide the point. See: Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634; [1984] 6 SC 362; Governor of Kaduna State v. Dada [1986] 4 NWLR (pt. 38) 687; Richard Ezeanya and Ors v. Gabriel Okeke and Ors ​[1995] 4 NWLR (pt.388) 142. Attorney-General, Federation v. A.N.P.P and Ors (supra). This is, also, the position under American law. In Security Life Ins. Co. v. Prewitt, 200 U. S 446 (1905), where a permit refusal which had been appealed against, but expired. The appeal was dismissed. In Faust v. Cairns, 242 Pa. 15 (1913), where a quarantine was moved while an appeal from a refusal to enjoin it was pending, the appeal was dismissed. This was, equally, the out of Cutcomp v. Uttah, 60 Ia. 156 (1882); Cheong Ah May v. United States, II3 U. S. 216 (1885); Bucks Stove Company v. American Federation of Labor, 219 U. S. 581 (1910). I am persuaded by the above authorities. I shall, therefore, approve of their application to the case at hand. – Per C. C. Nweze, JSC.

 

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APPEAL – LIVE SUIT

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To sustain our jurisdiction, it is not enough that a dispute was very much alive when the suit was filed, or even on appeal at the lower Court. Put differently, that the cause of action was very much alive when the suit was filed cannot substitute for the live issue or controversy that an exercise of this Court’s jurisdiction requires. – Per C. C. Nweze, JSC.

 

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JUDICIAL PRECEDENT – CONDUCT IF COURTS

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As rightly submitted by the learned senior counsel for the appellant, Kanu Agabi, SAN, the doctrine of judicial precedent is a time-honoured and sacrosanct principle in our jurisprudence. It is, therefore, applicable to this case to the extent that the reliefs sought by the appellant have been overtaken by events. The said reliefs no longer present a live controversy that the Court should employ its machinery to resolving in the circumstances.

The above findings, which are in relation to this Court’s issue, are in my considered opinion, forceful enough to dispose of the entire matter at hand. Otherwise, I will be performing a superfluous academic exercise which is not the core function of the adjudication process. – Per C. C. Nweze, JSC.

 

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MINING LEASE – UNCONVERTED RESIDUE – WHAT HAPPENS WHEN A MINING LEASE HAS BEEN PROCURED

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In other words, an unconverted residue in an acreage wherein a mining lease has been procured automatically reverts to the Government. By implication, the unconverted residue must be relinquished to the Government as a matter of law. – Per H. M. OGUNWUMIJU, JSC.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Federal High Court Rules

2. Supreme Court Act

3. Supreme Court Rules

4. Oil Prospecting Licences (Conversion to Oil Mining Leases, etc.) Regulations, 2004

5. Petroleum Act 1969

6. US Constitution

 

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